If there was a product on the market that caused blacks, or any other group, to end up at the bottom of the class, flunk out in large numbers, and suffer in the job market there would be an uproar for the Federal Trade Commission to pull the product immediately, coupled with calls for congressional investigations. Lawsuits would abound. Not so with racial preferences. Maybe it’s just easier to scam black students than fix the structural problems causing poor performance.

I have two comments on Kirsanow's post. First, growing pressure on the legal profession to diversify is creating new options for minority lawyers. As I noted in my earlier post, corporations and large institutional clients are starting to demand diversity from the firms that serve them. Now, judges are demanding diversity as well. In this article, Judge Mulls Diversity of Law Firms (Houston Chronicle, 6/26/06), Joshua Freed reports that Minnesota federal magistrate Franklin Noel has asked those firms vying for lead counsel status in a class action against United Health to provide information on how many women and minorities the firm employees. The judge explained that this information will not decide which firm becomes lead counsel, but nevertheless, will be one of several factors considered. As this case suggests, law firms will start foregoing business opportunities unless they can attract minority attorneys. And like it or not, most prominent firms will favor minority graduates from elite law schools over those who attended lower-tiered schools. The increasing focus on diversity undermines Kirsanow's conclusion that affirmative action "causes minorities to suffer in the job market."

Second, as to Kirsanow's argument that today's affirmative action system "scams black students," some, like Cameron Stracher, would argue that the entire legal education system is an "equal opportunity scammer." Over at the WSJ Law Blog, readers have been debating the merits of Cameron Stracher's WSJ opinion piece over whether law school keeps your options open. Stracher writes that:

In deciding whether to go to law school, here is the question you
need to ask yourself: What do you want to be when you grow up? If you
want to be a lawyer, then by all means go to law school. If you want to
defend the poor, work in public service, be a civil servant, go to law
school. But if your only reason for going to law school is because you
want to be rich, or because you are confused and someone has told you
it will “keep your options open” STOP RIGHT THERE, and read on.

Yes,
some lawyers are rich. Some lawyers are also movie producers, and WSJ
columnists, and investment bankers. But, statistically speaking, your
chances of becoming rich (or becoming a banker, etc.) are greater if
you have gone to a top ten law school. This doesn’t mean that students
from non-elite schools can’t become wealthy lawyers or even wealthy
movie producers, but the odds are against them. Put another way, the
bottom of the class at Yale still has a degree from Yale. The bottom of
the class at many other schools may not even have a job.

This
is not my fault (as one of my students suggests in his/her post). It is
simply a fact. One that is often ignored by students, and glossed over
by law school faculty and admissions deans. We don’t control the
market, but the market may control your future. No one would ever go to
medical school to “keep his or her options open.” Why have we
perpetuated this myth about law school? Perhaps because many law
faculty are refugees, themselves, from law firm practice. Perhaps
because we have a vested interest in educating as many students as we
can. Perhaps because students look at the most visible
writers/producers/bankers and think anyone can do it, even if they
can’t.

Perhaps Kirsanow is right that minorities who gain entry to elite law schools through affirmative action programs and think that they will succeed as lawyers are being duped. But so too are lots of nonminorities who look to law school as a way to keep options open, as an entry to a career in the movies or business or to make tons of money, only to discover the harsh reality after graduation that law school isn't necessarily a ticket to financial success. At the end of the day, law school, like anything else in life, is a crapshoot, albeit it a pricy one. Why should taking a risk or being stupid (whatever you choose to call it) be reserved for whites only?

If there was a product on the market that caused blacks, or any other group, to end up at the bottom of the class, flunk out in large numbers, and suffer in the job market there would be an uproar for the Federal Trade Commission to pull the product immediately, coupled with calls for congressional investigations. Lawsuits would abound. Not so with racial preferences. Maybe it’s just easier to scam black students than fix the structural problems causing poor performance.

I have two comments on Kirsanow's post. First, growing pressure on the legal profession to diversify is creating new options for minority lawyers. As I noted in my earlier post, corporations and large institutional clients are starting to demand diversity from the firms that serve them. Now, judges are demanding diversity as well. In this article, Judge Mulls Diversity of Law Firms (Houston Chronicle, 6/26/06), Joshua Freed reports that Minnesota federal magistrate Franklin Noel has asked those firms vying for lead counsel status in a class action against United Health to provide information on how many women and minorities the firm employees. The judge explained that this information will not decide which firm becomes lead counsel, but nevertheless, will be one of several factors considered. As this case suggests, law firms will start foregoing business opportunities unless they can attract minority attorneys. And like it or not, most prominent firms will favor minority graduates from elite law schools over those who attended lower-tiered schools. The increasing focus on diversity undermines Kirsanow's conclusion that affirmative action "causes minorities to suffer in the job market."

Second, as to Kirsanow's argument that today's affirmative action system "scams black students," some, like Cameron Stracher, would argue that the entire legal education system is an "equal opportunity scammer." Over at the WSJ Law Blog, readers have been debating the merits of Cameron Stracher's WSJ opinion piece over whether law school keeps your options open. Stracher writes that:

In deciding whether to go to law school, here is the question you
need to ask yourself: What do you want to be when you grow up? If you
want to be a lawyer, then by all means go to law school. If you want to
defend the poor, work in public service, be a civil servant, go to law
school. But if your only reason for going to law school is because you
want to be rich, or because you are confused and someone has told you
it will “keep your options open” STOP RIGHT THERE, and read on.

Yes,
some lawyers are rich. Some lawyers are also movie producers, and WSJ
columnists, and investment bankers. But, statistically speaking, your
chances of becoming rich (or becoming a banker, etc.) are greater if
you have gone to a top ten law school. This doesn’t mean that students
from non-elite schools can’t become wealthy lawyers or even wealthy
movie producers, but the odds are against them. Put another way, the
bottom of the class at Yale still has a degree from Yale. The bottom of
the class at many other schools may not even have a job.

This
is not my fault (as one of my students suggests in his/her post). It is
simply a fact. One that is often ignored by students, and glossed over
by law school faculty and admissions deans. We don’t control the
market, but the market may control your future. No one would ever go to
medical school to “keep his or her options open.” Why have we
perpetuated this myth about law school? Perhaps because many law
faculty are refugees, themselves, from law firm practice. Perhaps
because we have a vested interest in educating as many students as we
can. Perhaps because students look at the most visible
writers/producers/bankers and think anyone can do it, even if they
can’t.

Perhaps Kirsanow is right that minorities who gain entry to elite law schools through affirmative action programs and think that they will succeed as lawyers are being duped. But so too are lots of nonminorities who look to law school as a way to keep options open, as an entry to a career in the movies or business or to make tons of money, only to discover the harsh reality after graduation that law school isn't necessarily a ticket to financial success. At the end of the day, law school, like anything else in life, is a crapshoot, albeit it a pricy one. Why should taking a risk or being stupid (whatever you choose to call it) be reserved for whites only?